Brexit to re­quire par­lia­men­tary ap­proval in set­back for Theresa May

Malta Independent - - BREXIT DECISION -

Par­lia­ment alone has the power to trig­ger Brexit by no­ti­fy­ing Brus­sels of the UK’s in­ten­tion to leave the Euro­pean Union, the high court has ruled.

The judg­ment, de­liv­ered by the lord chief jus­tice, Lord Thomas of Cwmgiedd, is likely to slow the pace of Bri­tain’s de­par­ture from the EU and is a huge set­back for Theresa May, who had in­sisted the gov­ern­ment alone would de­cide when to trig­ger the process.

The lord chief jus­tice said that “the most fun­da­men­tal rule of the UK con­sti­tu­tion is that par­lia­ment is sov­er­eign”.

A gov­ern­ment spokesman said that min­is­ters would ap­peal to the supreme court against the de­ci­sion. The hear­ing will take place on 7-8 De­cem­ber.

The lord chief jus­tice said: “The court does not ac­cept the ar­gu­ment put for­ward by the gov­ern­ment. There is noth­ing in the 1972 Euro­pean Com­mu­ni­ties Act to sup­port it. In the judg­ment of the court the ar­gu­ment is con­trary both to the lan­guage used by par­lia­ment in the 1972 act, and to the fun­da­men­tal prin­ci­ples of the sovereignty of par­lia­ment and the ab­sence of any en­ti­tle­ment on the part of the crown to change do­mes­tic law by the ex­er­cise of its pre­rog­a­tive pow­ers.”

Un­less over­turned on ap­peal at the supreme court, the rul­ing threatens to plunge the gov­ern­ment’s plans for Brexit into dis­ar­ray as the process will have to be sub­ject to full par­lia­men­tary con­trol.

Gov­ern­ment lawyers had ar­gued that pre­rog­a­tive pow­ers were a le­git­i­mate way to give ef­fect “to the will of the peo­ple” who voted by a clear ma­jor­ity to leave the Euro­pean Union in the June ref­er­en­dum.

But the lord chief jus­tice de­clared: “The gov­ern­ment does not have power un­der the crown’s pre­rog­a­tive to give no­tice pur­suant to ar­ti­cle 50 for the UK to with­draw from the Euro­pean Union.”

The in­ter­na­tional trade sec­re­tary, Liam Fox, said the gov­ern­ment was dis­ap­pointed by the high court de­ci­sion but added that “the gov­ern­ment is de­ter­mined to re­spect the re­sult of the ref­er­en­dum”.

Ukip’s leader, Nigel Farage, said he was an­gered at the de­ci­sion. “I worry that a betrayal may be near at hand … I now fear that ev­ery at­tempt will be made to block or de­lay the trig­ger­ing of ar­ti­cle 50. If this is so, they have no idea of the level of pub­lic anger they will pro­voke.”

But the Labour leader, Jeremy Cor­byn, said: “This rul­ing un­der­lines the need for the gov­ern­ment to bring its ne­go­ti­at­ing terms to par­lia­ment with­out de­lay. Labour re­spects the de­ci­sion of the Bri­tish peo­ple to leave the Euro­pean Union. But there must be trans­parency and ac­count­abil­ity to par­lia­ment on the terms of Brexit.”

The Lib Dem leader, Tim Far­ron, said he was de­lighted by the rul­ing. “Given the strict two-year timetable of ex­it­ing the EU once ar­ti­cle 50 is trig­gered, it is crit­i­cal that the gov­ern­ment now lay out their ne­go­ti­at­ing to par­lia­ment, be­fore such a vote is held,” he said.

By hand­ing re­spon­si­bil­ity for ini­ti­at­ing Brexit over to MPs, the three se­nior judges – Lord Thomas; the mas­ter of the rolls, Sir Ter­ence Ether­ton, and Lord Jus­tice Sales – have ven­tured on to con­sti­tu­tion­ally untested ground.

The le­gal dis­pute fo­cused on ar­ti­cle 50 of the treaty on Euro­pean Union, which states that any mem­ber state may leave “in ac­cor­dance with its own con­sti­tu­tional re­quire­ments” – an un­de­fined term that has al­lowed both sides to pur­sue ri­val in­ter­pre­ta­tions.

The de­ci­sion may un­der­mine the prime min­is­ter’s au­thor­ity in con­duct­ing ne­go­ti­a­tions with other EU states in the run-up to the UK’s with­drawal.

Gina Miller, the lead claimant in the case, said: “It was the right de­ci­sion be­cause we were deal­ing with the sovereignty of par­lia­ment. It was not about win­ning or los­ing. It was about what was right. Now we can move for­ward with le­gal cer­tainty.”

Deir Dos San­tos, a hair­dresser and the other lead claimant, said: “To­day’s judg­ment is a vic­tory for ev­ery­one who be­lieves in the supremacy of our par­lia­ment and the rule of law. I have never chal­lenged the re­sult of the ref­er­en­dum – in fact I voted for Brexit for the sole rea­son that I wanted power to be re­turned from Europe to the Bri­tish par­lia­ment. But I did not think it was right for the gov­ern­ment then just to by­pass par­lia­ment and try to take away my le­gal rights with­out con­sult­ing par­lia­ment first.”

John Hal­ford, the solic­i­tor at Bind­mans who rep­re­sented the Peo­ple’s Chal­lenge group, said: “The over­sight, con­trol and demo­cratic ac­count­abil­ity needed for de­ci­sions on Brexit have to match the con­se­quences of those de­ci­sions for UK ci­ti­zens. That is why our con­sti­tu­tion em­pow­ers par­lia­ment, not the gov­ern­ment, to take de­ci­sions.”

John Shaw, chair of the or­gan­i­sa­tion Fair Deal for Ex­pats, said: ”This is su­perb news. We were con­vinced that our case was just. We’re de­lighted that the court agrees with us. There now needs to be a proper de­bate about how the rights of ex­pats will be pro­tected.”

The court took barely two and a half weeks to de­liver its judg­ment. Lawyers for the gov­ern­ment had ar­gued that the prime min­is­ter has au­thor­ity un­der the royal pre­rog­a­tive – its ex­ec­u­tive pow­ers – to give for­mal no­ti­fi­ca­tion.

The chal­lengers main­tained that par­lia­men­tary ap­proval and leg­is­la­tion was re­quired for such a fun­da­men­tal change that would de­prive mil­lions of UK ci­ti­zens of their le­gal rights. If min­is­ters alone trig­gered Brexit they would be un­der­min­ing the sovereignty of par­lia­ment, it was ar­gued.

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